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St. Paul Reinsurance Co.9/28/2005
se pursuant to OCGA § 7-4-12 (c), and which a tort judgment creditor may later seek to garnish along with the principal judgment debt owed. See Great Southern Midway, Inc., 223 Ga. App. at 643-644. Indeed, when a claim for this type of interest arises in a later-filed garnishment action, it is more akin to a request for prejudgment interest because the judgment creditor seeks to recover interest running from before the trial court enters judgment in the garnishment action and, in fact, from before the garnishment action was even commenced.
However, in the present case, the affidavit of garnishment filed by the Rosses only alleged that St. Paul was indebted to them for the amount of the consent judgment, not for any interest that had and was automatically accruing on that earlier judgment. Compare Lott v. Arrington & Hollowell, P.C., 258 Ga. App. at 52 (affidavit of garnishment filed by judgment creditor explicitly stated that garnishee was indebted to creditor for judgment amount plus accrued interest). " arnishment proceedings are governed by the pleading and practice provisions of the Civil Practice Act. OCGA § 18-4-1." Horizon Credit Corp. v. Lanier Bank & Trust Co., 220 Ga. App. 362, 363 (1) (469 SE2d 452) (1996). Under the Civil Practice Act, a party's complaint or amendments thereto must put an opponent on notice of the claims and relief sought; otherwise, such claims and relief are waived. See, e.g., Uniflex Corp. v. Saxon, 198 Ga. App. 445 (2) (402 SE2d 67) (1991); First Bank & Trust Co. v. Ins. Serv. Assoc., 154 Ga. App. 697, 699 (4) (269 SE2d 527)(1980). Because the Rosses failed to timely put St. Paul on notice that they were seeking to garnish the interest accruing on the underlying consent judgment, their claim for that interest has been waived. See OCGA § 18-4-61 (affidavit of garnishment must set forth "the amount claimed to be due on the judgment").
It is true that when the parties eventually joined issue on how much interest should be awarded in the garnishment action, the Rosses requested that the trial court permit them to recover the interest that had accrued on the underlying consent judgment. But, St. Paul duly objected that the request had come too late, and the Rosses thereafter did not follow up and seek leave to amend their affidavit to include a demand for the interest. See Horizon Credit Corp., 220 Ga. App. at 363 (1) ("The affidavit filed in a garnishment action is a pleading and can be amended as provided under both the Civil Practice Act and OCGA § 18-4-3 . . .") (citation omitted). Because St. Paul "made a clear objection to the . . . additional claims, it cannot be said that these claims were tried with [St. Paul]'s express or implied consent" under OCGA § 9-11-15 (b). Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852) (1979). See also Bland v. Graham, 249 Ga. App. 856, 857 (549 SE2d 809) (2001).
For the foregoing reasons, we affirm the trial court's ruling that the assault and battery exclusion contained in the liability policy did not bar coverage of the shooting of Ronald Ross. However, we reverse the trial court's award of post-judgment interest, and we remand with instruction to the trial court to recalculate the award of interest running on the $300,000 garnishment judgment from April 18, 2003.
Judgment affirmed in part, reversed in part, and case remanded with instruction. Ruffin, C.J., Johnson, P.J., Blackburn, P.J., Ellington, Phipps, and Mikell, JJ., concur.
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